Justia Immigration Law Opinion Summaries

Petitioner Felix Sanchez Rodriguez-Heredia, a Mexican national, petitioned the Tenth Circuit to review two decisions of the Board of Immigration Appeals (BIA). One decision, a request for a change in Petitioner's custody status, was dismissed as moot, because Petitioner was deported while waiting for this appeal. The second decision involved the order to remove him from the United States. Petitioner argued that he was not eligible for removal based on his conviction of a crime involving moral turpitude because he received nothing "of value" in perpetration of the crime. Specifically, Petitioner argued that a social security number was not like a good or service that constituted something of value that could be taken under Utah state law. Petitioner used another person's social security number in order to gain employment. The BIA found that Petitioner's fraud involved a crime of moral turpitude, and recommended his removal. Upon review, the Tenth Circuit found that because the state law required fraudulent intent in all circumstances regardless of whether anything of "value" was obtained, the law categorically described a crime involving moral turpitude. The Court upheld the BIA's order for Petitioner's removal.

Petitioner, a native of India, petitioned for review of a decision by the Board of Immigration Appeals ("BIA") affirming the immigration judge's ("IJ") determination that he was removable for having been convicted of two or more crimes involving moral turpitude ("CIMT"). At issue was whether the BIA properly determined that petitioner's conviction for failing to register constituted a CIMT and, coupled with a conceded theft CIMT, rendered him removable. The BIA then found it unnecessary to conduct a modified categorical analysis regarding petitioner's indecent exposure convictions. The court held that, in light of significant intervening developments, the case must be remanded for the BIA to consider whether petitioner's crime constituted a CIMT under the proper definition of moral turpitude as outlined in Matter of Silva-Trevino. The court also held that should the BIA determine that petitioner's failure to register conviction did not qualify as a CIMT, it should consider the issue left open in its prior ruling regarding petitioner's indecent exposure convictions.

Petitioner, a citizen of Israel, twice overstayed visitors' visas, then sought an adjustment of status based on an employer's approved petition for an alien worker. The application was denied because he refused to submit an affidavit detailing past attempts to enter and because he had been arrested attempting to smuggle another alien into this country. He was deemed inadmissible. His request to cancel removal was denied. The Board of Immigration Appeals and the Third Circuit rejected appeals. Removal may be cancelled if an inadmissible alien shows that he has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of application (8 U.S.C. 1229b). The petitioner's presence ended when he was refused readmission in 1999, after a short trip to Canada; his visa was cancelled because of his prior arrest. He signed a withdrawal of application for admission at that time, then obtained a passport under a new name and evaded immigration authorities in returning, indicating his awareness that he would not be allowed to return.

After being arrested and deported twice, the defendant was again arrested and entered a plea of guilty to unlawful re-entry under 8 U.S.C. 1326. The district court imposed a sentence of 96 months of incarceration; 59 months longer than the guidelines maximum. The Sixth Circuit remanded. Without holding a hearing, the district court again imposed a 96-month sentence. The Sixth Circuit again vacated and remanded. On a general remand, the defendant is entitled to a resentencing hearing at which he may exercise the right to be present and allocute as provided by the Federal Rules of Criminal Procedure; when a plenary resentencing hearing is held, the district court must state, in open court, the reasons underlying the imposed sentence. The court declined a request for assignment to a different trial judge.

Petitioner, a native and citizen of China, petitioned for review of two final orders of the Board of Immigration Appeals ("BIA") where the BIA denied him relief under former section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1182(c), and denied him protection under the Convention Against Torture ("CAT"); and where the BIA denied petitioner's motion to reopen his CAT claim based on alleged changed country conditions and refused to sua sponte reopen his application for section 212(c) relief to consider his newly acquired equities. At issue was whether the BIA should have considered petitioner's value and service to the community in assessing all of the relevant concerns bearing on his eligibility under section 212(c) relief. Also at issue was whether the BIA abused its discretion in denying petitioner's motion to reopen his application for CAT relief based on changed country conditions. The court granted the petition for review with respect to petitioner's application of section 212(c) relief and remanded for consideration of all relevant factors where the BIA did not indicate that it had considered petitioner's value and service to the community. The court also held that the BIA did not abuse its discretion in denying petitioner's motion to reopen where the BIA diligently listed all the materials petitioner submitted in support of his application and discussed why the evidence was not persuasive, was speculative, or was of limited relevance.

Petitioner, a native and citizen of the Philippines, petitioned for review of the Board of Immigration Appeals' ("BIA") May 2005 order denying his claims for asylum and withholding of removal and its March 2006 order denying his claim for protection under the Convention Against Torture ("CAT"). At issue was whether the BIA properly denied petitioner asylum and withholding of removal, whether the BIA properly denied petitioner's claim for protection under the CAT, and whether petitioner's due process rights were violated. The court held that the BIA properly concluded that petitioner's drug-trafficking offense rendered him ineligible for asylum and withholding relief where the record did not compel the conclusion that probable cause was lacking. The court also held that the BIA properly denied petitioner protection under the CAT where substantial evidence supported the BIA's conclusion that he was not likely to be tortured upon return to the Philippines. The court further held that there was nothing in the record compelling the conclusion that certain witness testimony somehow precluded petitioner from presenting his claims for relief.

The petitioner overstayed her visa. At a removal hearing she asserted a Fifth Amendment claim and would not answer questions, but did not request asylum or indicate any fear of return to Pakistan. Following a removal order, she remained. She moved to reopen her case seven years later. The Board of Immigration Appeals rejected a "changed conditions" argument for asylum. The Seventh Circuit affirmed. The Board correctly assessed both the claim of changed conditions in Pakistan and the merits of the petitioner's case and did not deprive her of due process. Her claims concerning her status as an unmarried, "westernized" woman were too speculative.

Petitioner, a native and citizen of the Philippines, petitioned for review of an order of the Board of Immigration Appeals ("BIA") retermitting his application for a waiver of inadmissibility pursuant to the now-repealed section 212(c) of the Immigration and Nationality Act ("INA"). At issue was whether petitioner was eligible for 212(c) relief and whether petitioner was eligible for discretionary relief under INS v. St. Cyr. The court held that res judicata bound the BIA to the final decision of the district court which held that petitioner was eligible for discretionary relief under section 212(c) based on St. Cyr.

The petitioner, born in Germany in 1957, was admitted as a lawful permanent U.S. resident in 1961. In 1990 he entered a plea of guilty to two counts of aggravated sexual abuse of a minor. He was discharged from parole in 1993; 14 years later the Department of Homeland Security issued a notice to appear. An immigration judge found the petitioner ineligible for waiver under 8 U.S.C. 1182(c) and the Board of Immigration Appeals dismissed an appeal. The Seventh Circuit denied relief. A waiver must be denied if the alien is deportable on a ground that does not have a statutory counterpart in section 212 of the Act; an aggravated felony involving sexual abuse of a minor has no statutory counterpart. It is irrelevant that he could have been charged differently and may have believed, when he entered his plea, that he was eligible for waiver. The court rejected due process and equal protection arguments.

Petitioner, a native and citizen of India, appealed from the Board of Immigration Appeals' ("BIA") order affirming the Immigration Judge's ("IJ") denial of his claims for asylum where petitioner had allegedly lied about previously applying for asylum in Canada. At issue was whether the IJ's adverse creditability finding was not supported by substantial evidence in the record and that petitioner was denied due process of law by the denial of continuance so that he could put his father on the stand. The court held that substantial evidence on the record supported the adverse creditability decision, the need for corroboration, and the conclusion that petitioner had not borne his burden of proof to establish eligibility for asylum. The court also held that the IJ did not abuse her discretion in denying another continuance where the IJ was not required to grant a motion for continuance based upon speculations.